Bojovic v Lydig Bejing Kitchen, Inc.

[*1] Bojovic v Lydig Bejing Kitchen, Inc. 2009 NY Slip Op 52830(U) Decided on December 18, 2009 Supreme Court, Bronx County Thompson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2009
Supreme Court, Bronx County

Rosa Bojovic, Plaintiff,

against

Lydig Bejing Kitchen, Inc., HOWARD SPRING and JULIUS SPRING d/b/a LYDIG SHOPPING CENTER, Defendants.



17604/07



APPEARANCES:

THOMAS M. BONA, P.C.

Attorney for Defendants

123 Main Street

White Plains, New York 10601

(914) 428-1438

VOZZA & HUGUENOT

Attorney for Plaintiff

2435 Eastchester Road

Bronx, New York 10469

Kenneth L. Thompson Jr., J.

The following papers numbered 1 to ___ read on this motion, _______________________ [*2]

NoOn Calendar ofPAPERS NUMBERED

Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed___________________

Answering Affidavit and Exhibits-____________________

Replying Affidavit and Exhibits-____________________Affidavit____________________

Pleadings Exhibit___________________

Stipulation Referee's Report Minutes___________________

Filed papers-____________________

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Defendants' motion for an Order pursuant to CPLR § 3212 granting summary judgment dismissing the Complaint is granted in part and denied in part.

Plaintiff claims that she was injured on January 31, 2007, at 10:00 am after slipping and falling on a snow and ice condition on the sidewalk in front of Defendants' restaurant. Defendants' application seems to argue that since Plaintiff's accident occurred before they opened their restaurant at 11:00 am on the morning of the 31st, they did not have constructive notice of the alleged condition such that liability may attach.

A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition, which caused the accident or had actual or constructive notice thereof. Robinson v. Trade Link Am., 39 AD3d 616-17 (citations omitted). To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to an accident to permit defendant's employees to discover and remedy it. Gordon v. American Museum of Natural History, 67 NY2d 836 (citations omitted). The mere presence of ice does not establish negligence on the part of the entity responsible for maintaining the property. Rather, a plaintiff must present evidence from which it may be inferred that the ice on which he slipped was present on the sidewalk for a long enough period of time before the accident that the party responsible for the sidewalk would have had [*3]time to discover and remedy the dangerous condition. Lenti v. Initial Cleaning Servs., Inc., 52 AD3d 288.

As an initial matter, there is no evidence in the record that Defendants caused or created the alleged condition at issue. Plaintiff testified that the area did not appear to have been sanded, salted or shoveled. (R. Bojovic EBT at 33:15-25; 6-9.) She also testified that she had never spoken to any of the Defendants regarding any snow and ice conditions on the sidewalk in front of their restaurant prior to her alleged mishap. (id. at 46:22-25; 47:2.) As such, the Court is dismissing any allegations regarding Defendants negligently causing, creating, exacerbating or removing the alleged condition at issue (S & C at ¶¶ 9-11), as well as those allegations involving Defendants' actual notice of the condition (id. at ¶ 12). Consequently, Plaintiff's cause of action is now limited to the issue of Defendants' constructive notice of the alleged condition at issue. See CPLR § 104 (stating that "[t]he civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding"); see also Janos v. Peck, 21 AD2d 529, 531 (stating that "[t]he determination by the court on a summary judgment motion of pivotal and controlling issues of law not tied in with disputed facts will "aid in the disposition of the action") (citations omitted).

Thus, the only questions that remain are 1) the origin of the alleged condition at issue and 2) Defendants' constructive notice of that alleged condition.

Plaintiff's alleged accident happened on the morning of January 31, 2007, at 10:00 am. There is evidence in the record showing that: 1) temperatures prior to the 31st fluctuated between a high of 41 degrees on January 28th and a low of 23 degrees on the 26th; 2) between January 25th and January 31st approximately one and a half inches of snow fell in the area; and 3) the last snowfall prior to Plaintiff's alleged fall began at 10:29 pm on January 30th and ceased at 12:49 am on the morning of January 31st.

Based on this evidence, coupled with the affidavit of Plaintiff's meteorologist, the Court finds that the condition at issue had been present on the sidewalk in front of Defendants' restaurant for at least 9 hours—from the time the snowfall ceased at 12:49 am on the morning of January 31st until Plaintiff's alleged fall at 10:00 am later that morning. This leaves, however, the final and most vexing of questions: Did Defendants have constructive notice of the alleged condition such that liability should attach for their failure to correct it? The Court finds that there are insufficient facts to make this determination at this time. [*4]

For liability to be imposed upon a landowner for a slip and fall, it must be established that the landowner knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period. On the issue of constructive notice, it must be shown that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit the landowner to discover it and take corrective action, and a general awareness that snow or ice might accumulate is insufficient.

Martin v. RP Assoc., 37 AD3d 1017-18.

Constructive notice ordinarily means that a person should be held to have knowledge of a certain fact because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question. Constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice.

Georgianna on behalf of Neuser v. Gizzy, 126 Misc 2d 766, 767; see also Hudson v. Union Free School Dist., 55 AD2d 1003, 1004 (stating that"[c]onstructive notice is a legal inference from established facts").

The snowfall that led to the condition at issue occurred during the time Defendants' restaurant was closed, thus, the condition was not "visible and apparent" until Defendants' agent opened the restaurant at 11:00 am. This does not equate to the sum of the constructive notice inquiry. The record, however, is devoid of facts sufficient to resolve at least three issues that would allow the Court to draw the legal inference of whether or not constructive notice is present.

First, there are no facts in the record that establish whether Defendants knew, or should have known, that it was snowing in the vicinity of its establishment between 10:29 pm, January 30th and 12:49 am, January 31st. Second, there is no evidence in the record to establish whether or not it was reasonable for Defendants to expect that a dangerous condition would result from that snowfall. Finally, there is nothing in the record to indicate whether or not it was reasonable for the Defendants' to wait until 11:00 am—when the restaurant usually opens—to remedy any dangerous condition it knew, or should have known, would result from the snowfall they knew, or should have known, occurred during the previous evening. Absent these fact, the Court finds [*5]that Defendants have failed to meet their burden in establishing entitlement to summary judgment on the issue of whether they had constructive notice of the alleged condition to have caused Plaintiff's injuries.

The foregoing shall constitute the decision and order of this Court.

APPEARANCES:

THOMAS M. BONA, P.C.

Attorney for Defendants

123 Main Street

White Plains, New York 10601

(914) 428-1438

VOZZA & HUGUENOT

Attorney for Plaintiff

2435 Eastchester Road

Bronx, New York 10469